McCall v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 3, 2004

Charles R. Fulbruge III
No. 03-50804 Clerk

WILLIAM MCCALL,

Petitioner - Appellant,

v.

DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee.

Appeal from the United States District Court for the
Western District of Texas

Before DAVIS, GARZA, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

On May 4, 2000, William McCall pleaded guilty to felony

driving while intoxicated (“DWI”) in violation of TEX. PENAL CODE §

49.09(b). He was sentenced to ten years in prison. The charge

against McCall was elevated from a misdemeanor DWI to a felony

DWI because he had been convicted of previous DWI offenses in

1994 and in 1997.1 In prison, McCall was notified that the Texas

1
TEX. PENAL CODE § 49.09(b) provides in relevant part that
“[a]n offense under Section 49.04 [which criminalizes driving
while intoxicated] . . . is a felony of the third degree if it is
shown on the trial of the offense that the person has previously
been convicted: . . .(2) two times of any other offense relating
to the operating of a motor vehicle while intoxicated . . . .”

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Board of Pardons and Parole (“Board”) intended to apply a 1996

sentencing statute, TEX. GOV’T CODE § 508.149, to him. He

petitioned the district court for habeas relief, arguing that the

1996 sentencing law should not apply to him because it was passed

after his 1994 DWI conviction, which conviction was an element of

his current felony DWI conviction. The district court denied

McCall’s petition. McCall challenges that determination in this

appeal. For the following reasons, we AFFIRM the district

court’s order denying McCall’s petition.

Procedural Background

After his felony DWI conviction, McCall filed a state

habeas petition, in which he argued that the Board had

incorrectly applied TEX. GOV’T CODE § 508.149 to his case, rather

than the earlier applicable sentencing statute.2 Section 508.149

gives the Board discretion to grant mandatory supervised release

(“MSR”) to prisoners when their good conduct time, added to their

calendar time served, equals the time to which they were

sentenced. Previously, prisoners such as McCall were

automatically entitled to MSR when their good conduct time, added

to their calendar time served, equaled the time to which they had

TEX. PENAL CODE ANN. § 49.09(b)(Vernon 2004).
2
The earlier applicable sentencing statute is the Act of May
21, 1985, 69th Leg., R.S. ch. 427 § 2, 1985 Tex. Gen. Laws 1549-
55, repealed by Act of May 8, 1997, 75th Leg., R.S. ch. 165, §
12.22, 1997 Tex. Gen. Laws 443.

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been sentenced.3 The state court determined that McCall’s claim

was not cognizable in a post-conviction habeas application and

that the Board had properly applied § 508.149 to his case.

McCall appealed to the Texas Court of Criminal Appeals,

which denied relief without written order. McCall then filed a

habeas petition, pursuant to 28 U.S.C. § 2254, in federal

district court. In his federal habeas petition, he argues that

the Board’s application of § 508.149 to his case violates the due

process and ex post facto clauses of the United States

Constitution. The district court denied McCall’s petition and

denied a certificate of appealability. We granted a certificate

of appealability on the issue of whether the application of §

508.149 to McCall’s case constitutes an ex post facto violation.

We now review that issue.

DISCUSSION

Justiciability

Respondent argues that McCall does not have standing to

bring this petition because this issue is not yet ripe for

review. For a case to fall within our jurisdiction it must be

ripe for review and the plaintiff must have standing to bring his

3
Act of May 21, 1985, 69th Leg., R.S. ch. 427, § 2, 1985
Tex. Gen. Laws 1549-55, repealed by Act of May 8, 1997, 75th
Leg., R.S. ch. 165, § 12.22, 1997 Tex. Gen. Laws 443.

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action.4 Standing and ripeness, which are essential components

of federal subject matter jurisdiction, can be raised at any time

by either party or by the court.5

To satisfy the standing requirement, a plaintiff must

demonstrate: (1) an injury in fact; (2) that is traceable to the

defendant’s challenged conduct; and (3) that is likely to be

redressed by a favorable decision of the district court.6 The

injury must be “actual or imminent, not ‘conjectural or

hypothetical.’”7 The party invoking federal jurisdiction bears

the burden of establishing these elements.8

For an issue to be ripe for adjudication, “a plaintiff must

show that he ‘will sustain immediate injury’ and ‘that such

injury would be redressed by the relief requested.’”9 “[I]f a

threatened injury is sufficiently ‘imminent’ to establish

4
Delta Commercial Fisheries Ass’n v. Gulf of Mex. Fishery
Mgmt. Council, 364 F.3d 269,272 (5th Cir. 2004); United Transp.
Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).
5
FED. R. CIV. P. 12(h)(3); Allandale Neighborhood Ass’n v.
Austin Transp. Study Policy Advisory Comm., 840 F.2d 258, 259-61
(5th Cir. 1988).
6
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
7
Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)).
8
Id. at 561.
9
Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994)
(quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438
U.S. 59, 81 (1978)).

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standing, the constitutional requirements of the ripeness

doctrine will necessarily be satisfied.”10

Respondent contends that McCall has not alleged an injury in

fact because he is not yet eligible for MSR – that is, the actual

calendar time he has served plus his accrued good conduct time

does not yet equal the term to which he was sentenced. In

response, McCall argues that the state has already labeled him a

“Mandatory Supervision Prospect,” meaning that his MSR is

discretionary. McCall asserts that the fact that his MSR is

discretionary has made his earned good conduct time meaningless,

since the Board can opt not to count that time towards

fulfillment of his sentence.

Since McCall filed his federal habeas petition on December

7, 2002, and his projected MSR date was not until June 11, 2004,

he was not eligible for MSR when he filed his petition. However,

the Board had earlier informed McCall that it had discretion to

decide whether to grant him MSR. The harm asserted by McCall is

the allegedly ex post facto application of § 508.149, which makes

McCall’s MSR discretionary, not the actual denial of MSR.

Therefore, the harm to McCall became “actual” as soon as the

Board indicated that his MSR was discretionary. Thus, the

application of § 508.149 to McCall’s case is not conjectural or

10
Nat’l Treasury Employees Union v. United States, 101 F.3d
1423, 1428 (D.C. Cir. 1996).

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hypothetical.

The other requirements of standing are easily met: the

injury to McCall was clearly caused by the Board’s actions, and

this court can redress that injury by determining that § 508.149

is not applicable to McCall. Therefore, McCall’s ex post facto

claim meets the standing and ripeness requirements.

Standard of Review

McCall contends that the district court erred when it denied

his § 2254 petition, finding that the Board had not violated the

ex post facto clause. “On appeal from the denial of a § 2254

petition, this court reviews a district court’s findings of fact

for clear error, and it reviews a district court’s conclusions of

law de novo, applying the same standard of review to the state

court’s decision as the district court.”11

Federal habeas review

When a federal district court reviews a § 2254 habeas

petition, it must defer to the determination of the state court

in any case adjudicated on the merits in state court

proceedings.12 A federal court may only overturn a state court’s

11
Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003).
12
The Texas Court of Criminal Appeals denied McCall’s state
habeas application without written order. However, we have
recognized that under Texas law, the denial of relief by the
Court of Criminal Appeals serves as a denial on the merits.
Barrientes v. Johnson, 221 F.3d 741, 779-80 (5th Cir. 2000).
Therefore, we consider this case as having been adjudicated on
the merits.

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determination if that determination was “contrary to, or involved

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court,” or if the state court’s

adjudication “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”13 A state court

decision constitutes an unreasonable application of clearly

established law if the “state court identifies the correct

governing legal rule from this Court's cases but unreasonably

applies it to the facts of the particular state prisoner's

case.”14 Further, any factual determinations by the state court

are presumed to be correct, and the petitioner bears the burden

of rebutting this presumption by clear and convincing evidence.15

Applicability of § 508.149

McCall contends that the Board violated the ex post facto

clause by applying § 508.149, which dealt him a punishment

(discretionary MSR) more severe than the punishment legislated

when his crime occurred (automatic MSR upon good time and time

served equaling sentence time). Article I of the United States

Constitution provides that no “ex post facto Law shall be

13
28 U.S.C. § 2254(d).
14
Williams v. Taylor, 529 U.S. 362, 407-08 (2000).
15
28 U.S.C. § 2254(e)(1).

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passed.”16 The imposition of a punishment more severe than that

assigned when a criminal act occurred violates this clause.17

“[L]egislative modifications to early release provisions or

parole standards may violate the prohibition on ex post facto

legislation if applied retroactively.”18

“For an ex post facto violation to occur, two elements must

be present: (1) a law must be retrospective, that is, it must

apply to events occurring before its enactment, and (2) the new

law must create a sufficient risk of increasing the punishment

attached to the defendant’s crimes.”19 In this case, the new law

– § 508.149 – creates a sufficient risk of increasing the

punishment attached to McCall’s crime. Section 508.149 permits

the Board to ignore McCall’s good conduct time under specific

circumstances, while the former law required the Board to count

his good conduct time towards his total time served. If §

508.149 is applied to McCall’s case, he stands a significant

chance of remaining in prison longer than if the older law were

applied. Therefore, the only issue remaining in the ex post

facto analysis is whether § 508.149, as applied to McCall’s case,

16
U.S. CONST. art. I, § 9, cl. 3.
17
Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000).
18
Id. (citing Lynce v. Mathis, 519 U.S. 433(1997)).
19
Warren, 230 F.3d at 692 (citing Cal. Dept. of Corrections
v. Morales, 514 U.S. 499, 509 (1995)).

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is retrospective.

Statutory background

The MSR law formerly applicable to Texas prisoners required

that the Board grant MSR when the calendar time served plus good

conduct time equaled a prisoner’s maximum sentence, unless the

prisoner’s conviction included an affirmative finding of use of a

deadly weapon, or was imposed for certain listed offenses, or

resulted in an enhanced punishment based on the drug-free zone

statutes.20 McCall’s felony DWI was not a listed offense under

this statute, his conviction did not include a finding of use of

a deadly weapon, and his conviction did not result in an enhanced

punishment based on the drug-free zone statutes. Thus, the

former MSR statute would have applied to McCall’s case and would

have required that the Board grant him MSR as soon as his good

conduct time and calendar time served equaled his 10-year

sentence.

In 1995, the MSR rule was amended to substitute

discretionary MSR for automatic MSR for certain prisoners.21

This amendment became effective on September 1, 1996.22 It

20
Act of May 21, 1985, 69th Leg., R.S. ch. 427 § 2, 1985
Tex. Gen. Laws 1549-55, repealed by Act of May 8, 1997, 75th
Leg., R.S. ch. 165, § 12.22, 1997 Tex. Gen. Laws 443.
21
Act of June 1, 1995, 74th Leg., R.S., ch. 263, 1995 Tex.
Gen. Laws 2592 (current version at TEX. GOV’T CODE ANN. §§ 508.147,
508.149) (Vernon 1998)).
22
Id.

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provided that “[a] prisoner may not be released on mandatory

supervision if a parole panel determines that the prisoner’s

accrued good conduct time is not an accurate reflection of the

prisoner’s potential for rehabilitation and that the prisoner’s

release would endanger the public.”23

The amendment also contained a savings provision stating

that the change in the law was to apply “only to a prisoner

serving a sentence for an offense committed on or after the

[September 1, 1996] effective date.”24 Under the terms of the

amendment, an offense would be considered to have been committed

before the statute’s effective date if “any element of the

offense occurr[ed] before the effective date.”25

In 1997, the former MSR statute was repealed and the

relevant provisions were moved to TEX. GOV’T CODE §§ 508.147 and

508.149.26 The savings provision of the former MSR statute was

incorporated into §§ 508.147 and 508.149, and thus remains

applicable.27

Prior DWI conviction as element of felony DWI

McCall argues that his 1994 DWI conviction was an element of

23
Id.
24
Id.
25
Id.
26
See Act of May 8, 1997, 75th Leg., R.S. ch. 165, § 12.22,
1997 Tex. Gen. Laws 443.
27
Id.

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his recent DWI felony conviction and that, therefore, under the

savings provision of the former MSR statute, his felony DWI

conviction should be considered to have occurred before the

effective date of change in the MSR rule. However, because this

is a habeas petition, we are limited to examining the state

court’s ruling only to see if it is contrary to clearly

established federal law.28 Therefore, we cannot examine the

issue of whether McCall’s 1994 DWI conviction was an element of

his DWI felony conviction under state law because doing so would

require us to examine Texas’s application of Texas law. Further,

though McCall relies on Texas state cases examining the

retroactivity of various sentencing statutes, we will only

consider whether § 508.149, as applied to McCall, violates

clearly established ex post facto law.

Section 508.149 altered the MSR provisions only for

offenders who were convicted after September 1, 1996. The Board

applied § 508.149 to McCall’s case because it determined that

although his felony DWI conviction required a finding that he

had previously committed DWI offenses, his felony DWI itself was

committed after September 1, 1996. The exact issue McCall

presents has not yet been examined by this court. However, this

court and other federal courts have examined analogous

situations and found that they did not violate the ex post facto

28
See 28 U.S.C. § 2254(e).

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clause.29

In Gryger v. Burke,30 the United States Supreme Court

considered a defendant who was sentenced as a habitual offender

based on a law that was enacted after his prior offense. The

Court reasoned that: “[t]he sentence as a fourth offender or

habitual criminal is not to be viewed as either a new jeopardy

or additional penalty for the earlier crimes. It is a stiffened

penalty for the latest crime, which is considered to be an

aggravated offense because [it is] a repetitive one.”31 In

United States v. Ykema,32 the Sixth Circuit applied similar

reasoning to uphold application of a statute that increased

punishment based on prior conduct. The Sixth Circuit reasoned

that the statute was permissibly applied to a defendant whose

prior conduct occurred before the statute became effective

29
See Gryger v. Burke, 334 U.S. 728, 732 (1948)(reviewing
habitual offender statute); United States v. Ykema, 887 F.2d 697,
670 (6th Cir. 1989) (examining statute that enhanced punishment
based on prior convictions); United States v. Saenz-Forero, 27
F.3d 1016 (5th Cir. 1994) (holding that use of a 1985 drug
conviction to enhance defendant's sentence did not violate the ex
post facto clause even though the drug conviction was not
classified as an "aggravated felony" for enhancement purposes
until 1988). These cases do not address statutes with savings
clauses, but as explained earlier, this is irrelevant to our
analysis because consideration of the savings clause in § 508.149
would involve examination of Texas’s application of Texas law,
which is beyond the scope of our habeas review.
30
334 U.S. 728 (1948).
31
Id. at 732.
32
887 F.2d 697, 700 (6th Cir. 1989).

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“because the heavier penalty for the offense is not an

additional punishment for the earlier behavior but is a

statutorily authorized punishment for criminal conduct that has

occurred after the passage of the law.”33 Similarly, in Perkins

v. Cabana,34 we upheld application of a Mississippi habitual

offender sentencing enhancement statute to defendants whose

prior offenses occurred before the statute became effective. We

reasoned that:

[the defendant’s] retroactivity argument misses the
mark. The statute defines and fixes the punishment
for future felony offenses. That it does so in terms
of past offenses does not punish or increase the
punishment for those past offenses. The State has
done no more than classify felony recidivists in a
different category for punishment purposes than the
category provided for first felony offenders. No
person is exposed to the increased penalty unless he
commits a felony after the enactment.35

The application of TEX. GOV’T CODE § 508.149 to McCall’s case

is similar to the sentence enhancements discussed above because

McCall’s punishment is based on the date of his most recent

offense, which took place after the statute became effective,

rather than based on the dates of his earlier offenses.

Discretionary MSR is best seen not as a secondary punishment for

McCall’s prior offenses, but as “a statutorily authorized

punishment for criminal conduct that has occurred after the

33
Id.
34
794 F.2d 168 (5th Cir. 1986).
35
Id. at 169.

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passage of the law.”36 Section 508.149 applies to McCall’s case

because McCall’s most recent offense took place after the

statute became effective. Like the Supreme Court in Gryger, we

conclude that classifying McCall as a “Mandatory Supervision

Prospect” under § 508.149 is not “an additional penalty for

earlier crimes,” but that it is “a stiffened penalty for the

latest crime.”37

CONCLUSION

Because the state court did not violate clearly established

federal law by upholding application of § 508.149 to McCall, the

district court did not err in refusing to grant habeas relief on

this basis. Therefore, we AFFIRM the district court’s judgment

denying McCall’s habeas petition.

AFFIRMED.

36
See Ykema, 887 F.2d at 670.
37
See Gryger, 334 U.S. at 732.

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